Marshall: A Great Voice Gon Quiet


Washington. -- It took six months, but Thurgood Marshall's wife and doctor finally convinced the 82-year-old justice that he ought to retire from the U.S. Supreme Court.

Justice Marshall had said to me defiantly that he would stay on the high court until he died, determined that Presidents Reagan and Bush would not turn the court into a fiefdom of right-wing ideologues. He fought off health problems for five years in keeping that vow.

But the ravages of age have taken their toll, causing Justice Marshall to make a move that dismays millions of Americans who are shocked to lose what they call "his liberal vote."

What the people may never understand clearly is that Mr. Marshall represented more than a vote on this incredibly powerful court. His was a private voice that could be very cantankerous if that was what was needed to jar the other eight justices out of the assumptions and mindsets of a privileged white America.

Four years ago, now-retired Justice William J. Brennan said to me: "In a period of our history when racial issues have been among the most prominent, he brings from his own bitter personal experience a perception of racism which is invaluable for us who have not had the same experiences."

Mr. Marshall told his fellow justices more than once how, in the days of Jim Crow in Baltimore, he had wet his pants because he was not allowed to use a public toilet in the downtown area. He told of his anger over not being allowed to study law at the University of Maryland because he was black -- and of the joy he got when, as a lawyer, he won a case forcing Maryland to admit its first black law student.

Mr. Marshall kept the other justices remembering that racism and segregation are more than "a little inconvenience," and his prodding surely was a factor in the recent surprise unanimous Supreme Court decision saying that the Voting Rights Act of 1965 must be applied to the elections of judges as well as other public officials and representatives.

Mr. Marshall has been a unique jurist because of his penchant for speaking his mind publicly about troublesome problems and people. He created a national sensation in 1987 when I asked him to rank U.S. presidents. Of Ronald Reagan, he said: "At the bottom. Down there with (Herbert) Hoover and (Woodrow) Wilson, when we (black people) didn't have a chance."

Why would a Supreme Court justice criticize severely a sitting president on nationwide television? Because, Justice Marshall told me, "the gatekeeper" in America determines who "gets to the table of justice."

"I don't care whether he's the president, the governor, the mayor or the sheriff," he continued, "whoever calls the shots determines whether we have integration, segregation or decency."

Even though Mr. Marshall had a brilliant record of winning 29 of 32 cases before the Supreme Court, and had served as solicitor general and as a member of the Second Circuit Court of Appeals, Sens. James Eastland of Mississippi and Strom Thurmond of South Carolina argued that he was "not qualified," saying that President Lyndon Johnson had named Mr. Marshall to the Supreme Court "only because he is a Negro."

The wagering in Washington now is that President Bush will not name a black person to replace Marshall because it would make the seat look like one of the "quotas" Mr. Bush has been railing against. Blacks would be insulted if Mr. Bush named a black right-winger to replace Justice Marshall.

The whole nation must be aware, though, that Justice Marshall's fights on the court were not just in behalf of blacks. He was outspoken on:

* Abortion -- "I figure it's up to the woman. We have progressed from the stage of keeping them barefoot and pregnant, but there's a lot further on that we have to go."

* Privacy -- "A couple of more decisions like that Georgia sodomy case and we won't have any privacy left. But I will raise my voice against it as long as I've got breath. You've got Big Brother in the bedroom; I don't know anyplace else that you can keep Big Brother out of."

* Press freedom -- "I've always been disturbed by efforts to curb or limit the powers of the press -- except when they print that I'm dead . . . or something like that."

* Few members who ever sat on the Supreme Court were greater supporters of the Bill of Rights, whose 200th birthday we are celebrating, than Justice Marshall. Even as he retired he was lamenting the actions of the Supreme Court to allow unlawful search and seizure, to permit prosecutors to use tainted evidence, to tolerate cruel and unusual punishment in first-offender drug cases, to whittle away at First Amendment protections of free speech.

Millions of Americans of all races, especially those who do not enjoy special privileges, have many reasons to regret Justice Marshall's decision to retire. The Bill of Rights and all its protections are in greater peril because of Justice Marshall's retirement.

Carl T. Rowan is a syndicated columnist.

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